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Supreme Court struggles with pair of race and redistricting cases

By JOSH GERSTEIN

12/05/2016 03:16 PM EST

The Supreme Court heard cases from Virginia and North Carolina Monday questioning how the legal system should respond to claims that states essentially packed too many minority voters into legislative districts.

While the shorthanded Supreme Court raises the possibility of a deadlock in the cases and could lead to them being reheard after a new justice appointed by President-elect Donald Trump joins the court, two of the sitting justices expressed views that could be key to the outcome of the decisions: Anthony Kennedy and Stephen Breyer.

The Virginia case involves the state's use of a floor of 55 percent voting-age African Americans to draw so-called majority-minority state legislative districts in 2011. The North Carolina dispute stems from a pair of majority-minority congressional districts drawn after the 2010 census and later rejected by a federal court. Both cases rest on whether minority communities' effect on local election results was unfairly diluted because their voters were packed into a handful of districts.

The district court judge in the Virginia case said that the 55 percent floor and any use of race in the redistricting process was irrelevant as a legal matter as long as the districts were logically drawn based on traditional factors, such as geography. However, Kennedy said he said the state's admission that it was using race as a factor should subject the action to close legal review, even if the boundaries are apparently sensible based on accepted factors.

"The district court, I think, said because the districts are conventional in all other respects, strict scrutiny doesn't apply. I have a problem with that," Kennedy said.

If Kennedy, a Republican appointee, votes with the court's Democratic appointees, that would form a five-justice majority. But in both cases Breyer was something of a wild card.

Breyer seemed eager to craft a manageable standard that would be relatively easy for courts to apply — and one that would reduce the overall number of challenges to future redistricting carried out by state legislators.

Breyer appeared to agree with Kennedy that the lower court was wrong about reasonable contours being enough to put the race issue to the side, but Breyer held open the possibility that the Virginia districts might be acceptable even if the judge had that test wrong.

"This is such a complicated area that it's the easiest thing in the world to go through a district court lengthy opinion and to find a sentence that's not exactly right," Breyer told Marc Elias, a Democratic election lawyer representing those challenging the maps in both North Carolina and Virginia. "if we're going to ... ever have districting done back in the legislatures, rather than in the courts, you've got to prove your case that, not only did what he say was wrong, but it mattered, with pretty strong evidence."

Elias insisted that the judge's conclusion that race wasn't relevant if districts were reasonably drawn on other grounds pervaded his ruling.

"This was not a stray sentence," Elias said. "In every one of those hundred-plus pages, this is the test he applies, over and over and over again."

The high court's most vocal critic of the use of a 55 percent floor was liberal Justice Elena Kagan.

"The idea that you would look at 12 districts and say that every single one of them ought to meet the same BVAP [black voting-age population] standard without looking at the characteristics of those districts, who's in them, how they vote, I mean, it just — it sort of defies belief you could pick a number and say that applies with respect to every majority-minority district," she said. "When a State says across the board we're going to do something that just on its face you know is not required by the Voting Rights Act, that's a problem."

Former George W. Bush administration solicitor general Paul Clement, arguing in the states' defense in both cases, said 55 percent was a pretty fair number for officials to pick to make sure that minority voters had a decent opportunity to select candidates of their choice, while not corralling far more African American voters than necessary.

"I don't think in this context a BVAP floor is inherently sinister," Clement said, adding that in many districts civil rights groups are insisting on a minority population of over 50 percent in such districts. "In the universe of possible numbers, 55 percent's about the best number you could come up with, because — I mean, my friends on the other side agree these all need to be majority-minority districts. So if the whole debate is it's got to be somewhere north of 50 percent, I mean, 55 percent, which gives you a little bit of margin for the fact that there may be differentials in in turnout. ... They're not against racial targets."

Coneservative Justice Samuel Alito seemed sympathetic to the states, saying that they were being held to a "vague" legal standard that suggested some use of race was necessary but not too much.

"Maybe there's no way around this; but this is all...as you lay it out, very, very complicated," Alito said. "Isn't this just an invitation for litigation in every one of these instances?"

While the court seemed to be leaning toward rejecting at least part of the judge's opinion in the Virginia case, the outcome of the North Carolina case appeared murkier.

For one thing, the panel of three federal judges who rejected the North Carolina districts ruled after state courts had already upheld those districts against similar claims. That led to questions of whether the federal case should have gone forward at all.

One of the high court's most liberal justices, Ruth Bader Ginsburg, asked about that issue, as did Republican appointees Kennedy and Chief Justice John Roberts.

"What's sustained is a matter of just luck of the draw?" Kennedy asked incredulously after Elias said the federal case deserved to be taken up without much regard to the state case.

But Elias noted that Congress created the expedited appeal procedure which got the federal case to the high court without passing through the appeals courts.

"Whether that was good policy on the part of Congress or bad policy on the part of Congress, it was a policy decision on the part of Congress," he noted.

If the high court reaches the merits of the North Carolina case, a key question appears to be whether challengers to a state's claim that a district was drawn for political reasons rather than racial ones need to show the existence of an alternative map that would meet the state's asserted political goals without the same kind of racial impact.

Alito appeared to indicate he favored such a requirement.

"If a legislature says, this was done based on politics, and there's no way we could have achieved our political objective without doing this, they can't prove a negative. So it makes sense to turn to the other side and say, 'Prove that that's wrong,'" Alito said.

But Elias and a lawyer representing the Obama administration disagreed, arguing that if challengers can show the district was drawn on a racial basis, they have a valid claim.

Clement argued that such an alternative map was required by the Supreme Court's decision in a 2001 case authored by Breyer. But Breyer himself seemed to raise doubts about that.

"I'm not so sure," Breyer said.

Justice Sonia Sotomayor is normally vocal in such cases, but she appeared to be suffering from a cold and laryngitis Monday, and took a lower profile role.